# Dad Gets 24 Months for DWI With Kids | TadLaw

## First-Time DWI with Child Passenger: A Felony in Texas

A first-time [drunk driving](https://tadlaw.com/resources/texas-dwi-resources/texas-dwi-laws/) offense is typically prosecuted as a misdemeanor. But the charge can quickly turn into a felony if there was a child in the car at the time of the driver’s arrest.

Under [Section 49.045 of the Texas Penal Code](https://statutes.capitol.texas.gov/Docs/PE/htm/PE.49.htm#49.045), it is a state jail felony for anyone to operate a motor vehicle while intoxicated where at least one passenger is “younger than 15 years of age.”

## The Morgan v. State Case

### DWI with Child Passengers

To illustrate what the law means in practice, here is a recent decision from a Texas appeals court, [Morgan v. State](https://accounts.google.com/v3/signin/identifier?continue=https%3A%2F%2Fscholar.google.com%2Fscholar_case%3Fcase%3D17752218329323375495&dsh=S606113456%3A1779733687812918&hl=en&flowName=GlifWebSignIn&flowEntry=ServiceLogin&ifkv=AWa2PasQersxfl_d2CjCKkMvkIip3mVqVHE6RIlBCdXPZ-Yo0jfjGR7eDPTSBwoeQfzARMDNIs8EgQ/). This case involved a [DWI accident](https://tadlaw.com/resources/texas-dwi-resources/intoxication-assault/) that occurred in Texarkana. The defendant was driving a vehicle with his three children as passengers. At some point, the defendant rear-ended another vehicle. Local police were called to the scene.

[![Open Container Violation - Non Moving Vehicle](https://tadlaw.com/wp-content/uploads/2018/11/Open-Container-Violation-Non-Moving-Vehicle-300x200.jpg)](https://tadlaw.com/wp-content/uploads/2018/11/Open-Container-Violation-Non-Moving-Vehicle.jpg)A police officer later testified that the defendant “had red, glassy eyes and smelled of alcohol.” When questioned, the defendant “misspelled the name” of one of his children and could not provide any of their birthdays.

After performing some field sobriety tests, the officers placed the defendant under arrest for DWI, after which he offered a voluntary admission that he drank a “couple of beers” before driving.

A jury ultimately convicted the defendant of DWI with a child passenger and sentenced him to 2 years in jail.

On appeal, the defendant unsuccessfully challenged a number of evidentiary rulings made by the trial judge. The appeals court rejected all of these challenges and upheld the defendant’s conviction.

### Defendant’s Appeal Challenges Rejected

One challenge related to the trial judge’s decision allowing the jury to hear about the defendant’s refusal to take a Breathalyzer test following his arrest.

The defendant argued this information was not admissible, because Texas evidence rules require an “electronic recording” of any statements made during a custodial interrogation–and no such record was ever produced.

The Court of Appeals held the defendant failed to properly “preserve” this issue for review, as he did not raise this specific objection with the trial court first.

### Disqualification of Rebuttal Witness

Another issue was the trial judge’s refusal to allow the defendant’s wife to testify as a rebuttal witness. The issue here, according to the Court of Appeals, was that the wife had been present in the courtroom when other witnesses testified.

Normally, a potential witness must remain outside the courtroom until they testify, so they cannot hear the testimony of other witnesses. In this case, the defendant actually asked the judge to let his wife remain in the courtroom. Having done so, the appeals court said, he could not then complain when the judge strictly applied the rules to disqualify her from later testifying.

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## Speak with a Houston DWI Accident Defense Attorney Today

If you are charged with a DWI following an auto accident, you need to work with an experienced criminal defense lawyer who understands the court system and will fight to protect your rights. [Contact](https://tadlaw.com/contact-us/) the Law Offices of Tad Nelson & Associates in Houston, Galveston and League City today if you need immediate assistance.

Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started

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